IURI 221 - 2022 - Study Unit 1

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IURI 221

Criminal Law: Specific Crimes

Dr. Francois van den Berg


 Faculty of Law
North-West University (Potchefstroom)
Study Unit 1: “Crimes against property” Building F5 - Room G25
 francois.vandenberg@nwu.ac.za
 018 299 1943
IURI 221
1
Theft
Study Unit

Study material

• Snyman Criminal Law 7th edition (LexisNexis 2020) 421 - 447

• Section 1 of Act 50 of 1956


IURI 221
1
Theft
Study Unit

Outcomes

At the end of this study section you should be able:


• to describe the essential elements and the nature of the crime
and define the protected interest;
• to explain the problematic nature of furtive intent, and
• to analyse the nature and content of section 1 of Act 50 of 1956.
IURI 221
1
Theft
Study Unit

Definition
A person commits theft if he/she unlawfully and intentionally appropriates
movable, corporeal property which

(a) belongs to, and is in the possession of, another;


(b) belongs to another, but is in the perpetrator’s own possession; or
(c) belongs to the perpetrator but is in another’s possession and such other
person has the right to possess it which legally prevails against the perpetrator’s
own right of possession

provided that the intention to appropriate the property includes an intention


permanently to deprive the person entitled to the possession of the property, of such
property.
IURI 221
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Theft
Study Unit

Elements
1. Act:

• Voluntary act (contrectatio)


o A “removal”
o A “physical handling or touching” of the property or something tantamount to a physical dealing
o “Removal” out of control (Exclusion from control – negative act of assumption)
o “Assumption or appropriation” of control (Positive act of assumption)

= act of appropriation…
IURI 221
1
Theft
Study Unit

Elements
2. Unlawfulness

• Ex post facto test

o Determines the legal convictions of society with regards to the


actions of the accused…
IURI 221
1
Theft
Study Unit

Elements
3. Intent

• Requires “furtive” intent:


 Conduct – Intentional
 Permanent deprivation - Intentional
o Goal:  Unlawfulness – Intentional
 intent to terminate the owner’s enjoyment of his rights, or
 deprive owner of the whole benefit of his ownership
R v Sibiya 1955 4 SA 247 (A)

= PERMANENT DEPRIVATION
IURI 221
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Theft
Study Unit

Elements
4. Property
• The conduct must be aimed at property – movable property:

This obviously excludes:


o Immovable property
o Incorporeals Absolute incapability
?
o Res nullins
o Res derelictae
Relative incapability
o Own property (Res sua)
IURI 221
1
Theft
Study Unit

Forms of Theft
• Removal of property
o Removal of another person’s lawful possession

• Embezzlement
o Belongs to other, but in perpetrator's possession

• Arrogation of possession
o Removal of own property from other person’s lawful possession

• Theft of credit, including the unlawful appropriation of trust funds


o Theft of incorporeal thing…
Unlawful removal of
IURI 221
1
Study Unit

property for use


S 1 of Act 50 of 1956
”Removal of property for use”
1  Unlawful appropriation of the use of another's property is an offence
(1)  Any person who, without a bona fide claim of right and without the consent of the owner or the person having the
control thereof, removes any property from the control of the owner or such person with intent to use it for his own
purposes without the consent of the owner or any other person competent to give such consent, whether or not he
intends throughout to return the property to the owner or person from whose control he removes it, shall, unless it is
proved that such person, at the time of the removal, had reasonable grounds for believing that the owner or such
other person would have consented to such use if he had known about it, be guilty of an offence and the court
convicting him may impose upon him any penalty which may lawfully be imposed for theft.
(2) Any person charged with theft may be found guilty of a contravention of subsection (1) if such be the facts proved.
IURI 221
1
Theft
Study Unit

Summary
IURI 221
Criminal Law: Specific Crimes

Dr. Francois van den Berg


 Faculty of Law
North-West University (Potchefstroom)
Study Unit 1: “Crimes against property” Building F5 - Room G25
 francois.vandenberg@nwu.ac.za
 018 299 1943
IURI 221
1
Robbery
Study Unit

Study material

• Snyman Criminal Law 7th edition (LexisNexis 2020) 448-452

• S v Mogala and Another 1978 2 SA 412 (A)


• S v McDonald 1980 2 SA 939 (A)
• S v Yolelo 1981 1 SA 1002 (A)
IURI 221
1
Robbery
Study Unit

Outcomes

At the end of this study section you should be able:


• describe the elements, nature and content of this crime, and

• explain the concepts “violence” and “threats” in depth.


IURI 221
1
Robbery
Study Unit

Definition
Robbery consists in theft of property by unlawfully
and intentionally using:
a) Violence to take the property from somebody else; or

b) Threats of violence to induce the possessor of the property to


submit to the taking of the property.
IURI 221
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Robbery
Study Unit

Elements
a) Theft of property…
b) Through the use of either violence or threats of violence…
c) A causal link between the violence and the taking of property…
d) Unlawfulness
e) Intention
IURI 221
1
Robbery
Study Unit

Theft vs Robbery
THEFT: A person commits theft if he/she unlawfully and intentionally appropriates movable, corporeal property
which

(a) belongs to, and is in the possession of, another;


(b) belongs to another, but is in the perpetrator’s own possession; or
(c) belongs to the perpetrator but is in another’s possession and such other person has the right to possess it which
legally prevails against the perpetrator’s own right of possession

provided that the intention to appropriate the property includes an intention permanently to deprive the person
entitled to the possession of the property, of such property.

Theft: Robbery:
NO VIOLENCE OR VIOLENCE or THREAT
THREAT OF VIOLENCE OF VIOLENCE!!
IURI 221
1
Robbery
Study Unit

Summary
IURI 221
Criminal Law: Specific Crimes

Dr. Francois van den Berg


 Faculty of Law
North-West University (Potchefstroom)
Study Unit 1: “Crimes against property” Building F5 - Room G25
 francois.vandenberg@nwu.ac.za
 018 299 1943
IURI 221
1
Fraud
Study Unit

Study material

• Snyman Criminal Law 7th edition (LexisNexis 2020) 461-473


IURI 221
1
Fraud
Study Unit

Outcomes

At the end of this study section you should be able:


• indicate whether fraud is a proprietary or a non-proprietary
crime or both;
• discuss in the elements of fraud, and
• discuss in whether or not attempted fraud is possible.
IURI 221
1
Fraud
Study Unit

Definition

Fraud may be defined as a voluntary


misrepresentation, which is made in an
unlawfully way with the intention to defraud,
and which causes potential or actual
prejudice to another.
IURI 221
1
Fraud
Study Unit

Elements
• Conduct including: Verbal, written and/or gestures to create a
misrepresenting facts and/or falsehood;
a) Misrepresentation; • Expressly and/or implied by means of commissio and/or omissio

b) Prejudice or potential • Misrepresentation must entail harm / potential harm;


• Potential harm = reasonable possibility of harm, not probability…
prejudice; • Prejudice doesn’t have to be linked to monetary value.

c) Unlawfulness;
• Perpetrator must be aware / suspect representation is false;
• Intention to deceive vs intention to defraud ?
d) Intention.
IURI 221
1
Fraud
Study Unit

Summary
IURI 221
Criminal Law: Specific Crimes

Dr. Francois van den Berg


 Faculty of Law
North-West University (Potchefstroom)
Study Unit 1: “Crimes against property” Building F5 - Room G25
 francois.vandenberg@nwu.ac.za
 018 299 1943
IURI 221 Malicious injury to property &
1
Study Unit

Arson

Study material

• Snyman Criminal Law 7th edition (LexisNexis 2020) 475-479


IURI 221 Malicious injury to property &
1
Study Unit

Arson

Outcomes

At the end of this study section you should be able:


• discuss the differences and similarities between arson and
malicious injury to property;
• analyse the essential elements of these two crimes.
IURI 221 Malicious injury to property &
1
Study Unit

Arson

Definition
MALICIOUS INJURY TO PROPERTY is the unlawful and intentional damaging of
a) another’s movable or immovable property, or
b) own insured property in circumstances where it is his intention to claim his
or her loss from the insurer.

ARSON is the unlawful and intentional setting on fire of


c) another’s immovable property, or
d) own insured immovable property in with the intention to claim from the
insurer.
IURI 221 Malicious injury to property &
1
Study Unit

Arson

Elements
MALICIOUS INJURY TO
PROPERTY
VS ARSON

a) Damaging a) Setting fire to


b) Movable / b) Immovable
immovable Property Property
c) Unlawfulness; c) Unlawfulness;
d) Intention. d) Intention.
IURI 221 Malicious injury to property &
1
Study Unit

Arson

Summary
IURI 221
Criminal Law: Specific Crimes

Dr. Francois van den Berg


 Faculty of Law
North-West University (Potchefstroom)
Study Unit 1: “Crimes against property” Building F5 - Room G25
 francois.vandenberg@nwu.ac.za
 018 299 1943
IURI 221
1
Study Unit
Housebreaking with the intent to
commit a crime

Study material
• Snyman Criminal Law 7th edition (LexisNexis 2020) 479-486

• R v Willy Ovamboland 1931 SWA II


• S v Madyo 1990 SASV 292 (OK)
• R v Tusi 1957 4 SA 533 (N)
• R v Mososa 1931 KPA 348
• S v Moroe 1981 4 SA 897 (O)
IURI 221
1
Study Unit
Housebreaking with the intent to
commit a crime

Outcomes

At the end of this study section you should be able:

• discuss the essential elements, and

• indicate whether this crime is a proprietary or a non-


proprietary crime.
IURI 221
1
Study Unit
Housebreaking with the intent to
commit a crime

Definition

The unlawful and intentional breaking into


and entering a building or structure with the
intention of committing a crime in it.
IURI 221
1
Study Unit
Housebreaking with the intent to
commit a crime

Elements
a) Breaking into “Removal of obstacle”

b) Entering “Entering building / structure”

c) Unlawfulness
d) Intention “Intention to break into building / structure”
“Intention to commit another crime”
IURI 221
1
Study Unit
Housebreaking with the intent to
commit a crime

Summary

SSv vMadyo
Moroe1990
1981SASV
4 SA 897
292 (O)
(OK)

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